On July 25, 2016, Hogan Lovells hosted a Silicon Valley dinner as part of its 2025 dinner series. The theme of the dinner was “I’m from Mars, You’re from Venus: The Tech Community and its Future Relationship with Government”. The discussion, moderated by Deirdre Mulligan of UC, Berkeley, focused on the tech community’s view of regulatory, law enforcement and national security issues, here in the U.S., as well as in Europe; and how the tech industry will be impacted by the upcoming U.S. elections as well as Brexit.
Policy through Design: the FBI vs. Apple case (amicus brief available here) highlights the issue of technology design as an attractive new battleground for disputes about which public values to prioritize. The concerns center around whether government should regulate use of technology or the technology itself. In the past, choices about which values to promote in public policy have largely focused on governing systems and their use: the regulation of technology. Today, and in the future, regulators increasingly seek to build in value preferences through technological form: policy by design. The problem now is that multiple government agencies are seeking to bend technology to support competing priorities. Law enforcement and national security agencies have actively sought to constrain privacy and security features of the technical artifacts upon which we rely to ensure ready access to data and easy monitoring to support law enforcement investigations and prosecutions. At the same time, privacy and consumer protection regulators around the globe have demanded “privacy by design” – the notion that information privacy, and now information security, inform the design and modification of computer and information systems, including digital networks and devices.
Privacy as a Strategic Business Imperative: The US/EU Privacy Shield negotiations highlight the extent to which privacy concerns generated by government access can shape public, and other nation states’, perceptions of—and regulation of—corporate privacy protections. (See Julie Brill’s speech in Dublin in June.) It drives home the need to not just follow and shape the laws, but to offer solid and trustworthy explanations of their strengths and limitations. The intersection between Brexit—and the U.S. November election—and privacy also highlights the way in which privacy work today is not solely about compliance but intertwined with broader corporate strategy in multiple ways. To fully advance and protect the corporation’s license to operate—and the perception that it is a respected member of the international business community—in this tumultuous time requires corporate privacy leaders to engage with external stakeholders on a regular basis. It requires strategic alliances with like-minded companies, civil society organizations, and policy makers. This is not an inward looking, compliance oriented portfolio. The need for external engagement will only grow as IoT, AI, and other technological advances bring more privacy issues and more stakeholders to the table.
Technology expertise within government: With the shuttering of the Office of Technology Assessment, a 200-member congressional support agency that closed in 1995 under House Speaker Newt Gingrich, members of Congress who are largely lawyers and rhetorical masters are asked to differentiate between different approaches to technology without access to the neutral, technical expertise necessary for effective evaluation. We saw how that played out with the DNS aspect of the Stop Online Policy Act. While Congress lost its stable of technical experts, the White House, the Federal Trade Commission, and other agencies in the US have grown their own privacy and technical expertise. We have seen some additional of technical professionals to government agencies in Europe—for example the UK’s digital services shop and the French CNIL—but no other country parallels the changes we’ve seen in the US government.
Hogan Lovells CEO Steve Immelt lead a conversation about Brexit, prompting comments that removal of the UK may weaken business-minded voices in the EU. However, many companies are employing the “wait and see” mind-set because over the next two years nothing will actually happen. Brexit could serve as an opportunity to re-orient the conversation as the UK might seek to reposition itself. Positive opportunities that Brexit present – being the Switzerland with muscle? – Brexit could position UK as a more active place for business as it is located near but not directly in EU.